Flagg and lower his Top-Sail at his first approach to the French Fleet and to salute the Admiral of France with Guns who was to return the said salute by Guns also as was usual when the Dutch and English Fleet did meet Only in this the right of the Flagg of England differs from that claimed by the French for if there had been a failer on the part of the Dutch of paying that respect to the French the same would have amounted to no more but a breach of the League but the not striking to the King of Englands Flagg is open Rebellion and the Article does so signify for it is there mentioned as a Right and Soveraignty not a bare Dominion only like that of Jerusalem to the King of Spain XII The Duty of the Flagg that hath been so constantly pay'd to our Ancestors is of such advantage to the continuing the renown of this Nation that it serveth to imprint new reverence in Forreigners that render it and adds new courage to those of our Sea Men that exact it and since we know how much it imports a State that it be reverenced abroad and that Repute is the principal support of any Government it equally influenceth the Subjects at Home and Forreign Allies abroad And as there is no Nation in the World more tender of their Honour then the English so none more impatiently tollerate the diminution thereof with what resentments would not only the more generous and Noble but even the Popular and vulgar Sea Men detest this or any succeeding Age should they remit or loose that Regality those acknowledgements which their Predecessors with so much Glory asserted and the neglect whereof was alwaies punished as open Rebellion the indignity of such an Action being sufficient to enflame the whole Kingdom the consideration of which besides his Sacred Majesties own Royal inclination to the same and his evident testimonies never to abandon a ceremony of so high a concernment witness the exposing the one half of his own heart his Royal Highness in the asserting the same with such Fleets and in such Battles that no Age or time cannot shew a memorial of the like are causes sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights Private Persons move in another sphear and act by other Rules then Soveraign Powers the regard of credit with them may oftentimes yield to those of utility or other motives the Publique receives little injury thereby or is their wisdom questioned for such punctilio's if they relinquish them for other Imoluments or Peace sake but Soveraigns cannot so transact their subjects the People participate in their Honour and indignities they have a property a direct Right in the former Soveraignes cannot alienate or suffer their Honours to be impaired because it is not really theirs it appertains to the Nation universally and they are all effectually injured by such transactions either because the indignity doth really extend to them or because the Government and Authority is thereupon weakned and prejudiced which is the greatest of Civil detriments that can befall a People though ordinarily they are not aware thereof As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons so doth Charity it self for though the Gospel precepts do oblidge particular Persons to bear injuries and contumelies with patience and to surrender even the Coat as well as the Cloak yet is not this so to be construed as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon and usurp them or that they were to deprive themselves of those Reparations which the Law and Government affords them neither is it so to be understood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence which is due unto dignity but bear the Sword in vain XIII This being the value which this Nation did alwaies place upon the Right of the Flagg the which they never did regard it only as a Civility and Respect but as a principal Testimony of the unquestionable Right of this Nation to the Dominion and superiority of the adjacent Seas acknowledged generally by all the Neighbour States and Princes of Europe and must be pay'd and ackowledged by all Princes in the World that shall be or pass on the same The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas such as are born thereon are not Aliens and to be within them is to be within the Legeance of the King and Realm of England The Records in the daies of Edward the 3d. and Henry the 5th proclaim it that those Kings and their Progenitors had ever been Lords of the Seas and amongst those many great Instances of proving the Soveraignty of the same is that famous Record of Edward the first and Phillip the Fair of France in which the Procurators of most Nations Bordering upon the Sea thoroughout Europe as the Genoeses Catalonians Almaines Zelanders Hollanders Freislanders Danes and Norwygians besides others under the Dominion of the Roman German Empire where all joyntly declare That the Kings of England by right of the said Kingdom from time to time whereof there is no memorial to the contrary have béen in peaceable possession of the Soveraign Lordship of the Seas of England and of the â—…es within the same with power of making and establishing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished then Merchant Men use to be and of taking surety and affording safe-guard in all cases where néed shall require and of ordering all things necessary for the maintaining of Peace Right and Equity among all manner of People as well of other Dominions as their own passing through the said Seas and the Soveraign Guard thereof By which it plainly appears That the King of England had then been in peaceable possession of the said Dominion by immemorial prescription that the Soveraignty belongeth unto them not because they were Domini utriusque ripas when they had both England and Normandy and were Lords of both shores for Edward the first at that time had not Normandy but that it is inseparably appendant and annexed to the Kingdom of England our Kings being Superior Lords of the said Seas by reason as the very Record mentions of the said Kingdom and since that the Soveraignty of the Sea did alwaies appertain unto the English King not in any other Right then that of the Kingdom of England no Prince or Republique ought or can doubt the Tittle by which our present claim is deduced 't is in right of Britannia that the same is challenged 't was in that right the Romans held it the claim justified Ed. 3. and his Rose Noble though there are other reasons regarding to the Lancastrian Line which yield a Colour for the use of the Port-cullis in the Roal Banners of England
charged and of all other that may renew in my minde and in shall for nothing lette that is for to say for franchise Lordship Kinreden aliance Freindship Love hatred Envye Enemitee for dred of lost of Goodnee for none other case that I shall soe doe the Kings Counseils my fellows mine owne will and truly hele what oute fraude or malengyn so God me help at the holydome and by this Book VIII And as the enquiry was strict so was the punishment very great Item qui fugiet a Domino vel Socio suo pro timiditate belli vel mortis in conductione Heretochii sui in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat Dominus ad terram quam ei antea dederat IX If such Persons shall so desert the service it hath been a question whether a private Person under the same obedience meeting with such a deserter might not put him to death it hath been conceived that he might and the Act is lawful and the party that slayes him hath a true right before God as impunity before Men But that is to be understood partly by the words and partly by the letter of the Law for if the Law gives indulgence to passion it takes away humane punishment and not the fault as in case a Husband kills an adulterous Wife or the adulterer in the act most certain it is a provocation in the highest nature and will justify the slayer But if the Law respect the danger of future evill by delay of punishment it is conceived to grant right and publique power to a private Man so that he is not then in the capacity of a private Man And upon that very reason Queen Elizabeth deny'd the constituting of a Constable for the Tryal of Sir Francis Drake who struck off the head of Doughty in partibus transmarinis X. Hence it is that every Man hath a licence given him to oppose force against plundering and pillaging Souldiers and the next the subsequent Law about deserters saith Let all Men know they have a power given them against publique robbers and desertors that run from their Colours and all are Ministers of revenge for the quiet of all to this purpose is that of Tertullian Against traitors or publique enemies every Man is a Souldier and herein differs the right of killing of exiles and Outlaws or those whom they call Bannitoes from those kind of Laws because there proceeds a special Sentence the Judgement of Banishment or Outlawry being promulgated but here a generall Edict the fact being evident obtains the force of a Judgement or Sentence pronounced the Judgement of the latter must be according to the Civil Law which yet remains still in force as to the Tryal of such deserters by which impunity for such killing seems allow'd off at this day by that Law CHAP. VII Of Dominion established by Creaties of Alliance equal I. Of Treaties by interview of Princes and where generally held II. Of Princes equal the honour pay'd by him in possession to him that comes to the Treaty III. Of Treaties by Princes unequal IV. Princes where oblidged to treat personally and where not V. Deputies their demeanor considered generally at Treaties VI Of the nature of Treaties generally and their ends and where they determine by the death or dispossession of a Prince and where not VII Of Treaties in reference to matters particular and of the nature of Leagues offensive and to what end VIII Of the causes ordinary procuring such Leagues IX Of Leagues tending to the procuring of general Peace and Warranty X. Of Leagues defensive and of their end together with considerations on the Persons with whom they are made XI Of accidents not provided for in the League how far in honour to be comply'd with XII Of Contribution the difficulty in regulating the same to the satisfaction of the parties interessed XIII Of Leagues concluded by Deputies and of the Ratifying the same XIV Of the causes extraordinary that tend to the breach of Leagues XV. Of the causes ordinary that give occasion for rupture of the same and from whence they proceed XVI Of the obligations on Confederates as in reference to mutual succours XVII Of Aide granted to particulars and common Allies when invaded by another Ally and of protection granted when a people are oppressed whether aide to such may stand with the League XVIII Whether the Oath taken for the performance of such a League is personal or binds the Successor and the general rule in construing of the same XIX Of Leagues made with Princes though driven out of their Country when the same are good I. TReaties are acted either by the interview of Princes or by Persons sufficiently Commissionate for that purpose Those that are by interview have been often disapproved though often practised but that depends rather of the Estate of affairs and the conformity and diversity of honours and manner of living of the Princes and their People then of the interview that of Lewis the 11th with Duke Charles of Burgundy and with the same King with Edward the 4th of England past fairly and in all such Treaties they govern themselves as in reference to their supplies according to the confidence which they repose in each other Places Neuter belonging to some Common Friend or or some Frontiere or Islands are generally appointed for the same together with what numbers or forces they are to be accompanied II. But if of two Princes the one goes home unto the other he is bound to do him the honour of his House And if the Prince be inferiour unto him he commonly snds forth some of Principal Officers of his Court to receive him but if he be his equal in Quality as being both Kings although there be some debate betwixt him for precedence if he comes first to the Place where the Treaty is to be made he must go in person and not by proxy In the interview that was between Lewis the 12th and Ferdinand of Arragon at Savona which then belonged unto the French King Lewis the 12th at the approach of Ferdinands Gally before he could land entered into it accompanied only with his Guard to testify his confidence and thereby to assure King Ferdinand of that which he had promised he should find in him and at their going to Land King Lewis left the Right hand to Ferdinand who lodged in the Castle as the most Honourable place and himself went to the Bishoprick III. By the Laws of Treaties when two Princes unequal in Quality partly the inferior is to come first to the place of congress there to attend the Greater IV. Ambassadors having received Orders to treat the Prince to whom such are sent are not by the Laws of Treaties bound to treat personally but only to depute some of his Councel for that effect the reason is for that the dignity of a Prince
Oath as their firmament though that is not so for the most part of the efficacy of such Leagues rests in the promise it self to which for Religion sake the Oath is added Hence it is that Promises made to a Free-People are in their nature real because the subject is a permanent matter although the State or Republique be changed into a Monarchy yet the League remains for that the body i. e. the power is still the same though the Head be changed And the Person is incerted into the agreement not that the agreement may be personal but to shew with whom it is made for if it be incerted into the League that it shall be perpetual or that it is made for the good of the Kingdom or with the Person and his Successors or for a time limited the same does most apparently demonstrate the thing to be real However in all Leagues which tend to Peace though there may remain somewhat whereby words of ambiguity may arise yet the most pious way of interpreting hath been to account the same rather real then Personal for all Leagues made for Peace or Commerce admit of a favorable construction Leagues defensive have more of favour offensive of burthen XVIII Leagues made with Princes although they happen afterwards to be driven out of their Kingdoms by their Subjects yet the League remains firm and good for the Right of the Kingdom remains with such an unfortunate Prince notwithstanding he hath lost his Kingdom on the other hand Leagues made with the Invader cannot be good for his cause being unjust is odious but if the people will make him King de facto and investe him the question is then out of all controversy for then he is become a King regnant and by the Laws of England if treason by committed against his Person and after he is beaten out and the King de Jure comes to his Crown the King de Jure may punish those Traytours with death The Earl of Warwick having raised an Army in France and Flanders invaded England and within five or six daies after his landing King Edwards Forces betraying him the Earl became Master of the Realm the King flying for protection to his Kinsman the Duke of Burgundy he kindly in his misfortunes entertained him yet while he was in this banished estate the Duke of Burgundy renewed the League with the English it being agreed that notwithstanding King Edwards misfortune the League remained firm and unviolable between the Duke Charles of Burgundy and the King and Realm of England So that for Edward they should name Henry who was newly taken out of the Tower by the Earl of Warwick at his chacing out of King Edward now the true reason that Leagues remain and are firm notwithstanding such a change is because there goes along with them a tacite condition viz. of holding their possessions and therefore the World wondred not that His late Sacred Majesty having sworn a League with the King of Spain expresly as he was King of Portugal did notwithstanding receive two Embassadors from the then new King of Portugal and that without being judged either in England or Spain to have broken his former Oath and League The Duke of Guise having formed the League against Henry the Third which was that in regard the King was so cold in the Profession of the Romish Faith that it was in danger to be extinguisht by the increase which he permitted of the Reformed Religion especially seeing Henry the Fourth then King of Navar was of that Religion and was to succeed to the Crown wherefore by the Mediation of Philip the Second of Spain the Pope qualified the Duke of Guise Head of that Catholique League and which in point of Government was to set him above the King avowed him Protector of the Catholique Faith in the Kingdom of France When Henry the Fourth succeeded the Crown then this League for security of Religion was most violent and the Spaniard without hoped by nourishing thus the division within to carry all for himself at last To avoid which gin and to answer all the King chang'd his Religion and negotiated by d'Ossat to be received by the Pope as a dutyful Son of the Church of Rome demanding absolution for what was past and making large promisses of due obedience for the time to come the King of Spains interest was that he should not be received and thereupon he endeavoured to perswade the Pope that King Henry did but dissemble with him and that under this disguise he would easiest ruine the Romish Religion notwithstanding this the Cardinal obtained his Reception Absolution and Benidiction through the many promises and presents which he made to His Holyness whereupon the Spaniards designes were in a moment all blown over from France but fell heavily upon the United Provinces which were sorely opprest for that they apprehended the loss and ruine of their Countrey and thereupon they implored assistance from King Henry who received their Ambassadours very gratiously and gave them assurance of relief The King of Spain who wanted no good intelligence in the Court of France immediately remonstrates to the Pope that his former inclinations concerning Henry's dissimulations did now appear in the face of all the World and that seeing His Holyness had been so credulous he knew not now whether they should be able to save the Catholique Faith from being subjected to the Reformed Religion or no for whereas the Hollanders had revolted from him only because he resolved to use the true means for the establishment of the Romish Faith among them and that now he was in a fair way of reducing them which conduced so much by his Holiness his opinion to the establishment of the Romish Faith Henry had taken their party against him in that work and that at Paris he had received their Ambassadors to that purpose although he knew they were his lawful Subjects c. This startled the Pope not a little who charged d'Ossat for having betrayed him and put the Church in danger this argument was as subtil on the Spaniards side as changing Religion was on King Henry's and therefore the Cardinal was not a little perplext how to answer it to the advantage of his Master as also coherently to the considerations of his former reception into the Church But at last he replyed That His Holyness needed not wonder how in reason of State those different Religions might joyn together for political ends without hazard of altering Religion Thus David sought protection of the Philistians and Abraham redeemed the sinful Sodomites That he took it to be upon the same ground that His Holyness himself not long before received a Persian Ambassador who was so far from being an Heretick that he never pretended to the Name of Christian that it was a plausible argument which the King of Spain used in complaining of Henry's receiving and avowing their Ambassador especially knowing
their proof by their marks or Cockets by the Book of Customes or by the Testimony of honest men and if the Wreck belongs to the King the party may sue out a Commission to hear and determine and that by the Oaths of twelve men Or else he may bring his Action at Law and make out his proof by Verdict but such Action must be brought within the year and day Note Flotsam Jetsam and Lagan are Goods on or in the Sea and belong to the King who by Charter hath granted them to the Lord Admiral IX If Goods are wreckt on the shoare and the Lord having power takes them he shall not pay Custome The Admirals of England ut magnus Admirallus Angliae Hiberniae Walliae ac Dominiorum Insularum earundem Villae Calisiae Merchiarum ejusdem nec non Gasconiae Aquitaniae classium marium dictorum regnorum Angliae praefectus generalis c. which are the words of their Patents used at this day do claym all Wrecks arising from any of those places by vertue of their Grants X. King Edward the Second in the first year of his Reign by his Charter granted the Castle of Carisbrook with all the Lands and Tenements in the Isle of Wight formerly belonging to Isabella Fortibus Countess of Albemarle to his great Favourite Peter de Gaveston and Margaret his Wife and the heirs of their two bodies begotten together with sundry other Castles and Lands and commanded Nicholas de Bosco to put him into actual possession and likewise commanded Robert de Sanson Keeper of the Forrest of Parkhurst in that Isle to be intendent to them for the Farm he had granted him for life for the Custody thereof which being after soon reseised into the Kings hands he granted this Castle with all its Services and all his Lands in that Isle to Edward his Son and his Heirs Kings of England and afterwards for the ascertaining what did of right belong to the same Castle an Inquisition went out by which it was found inter alia qd wrecknÌ„ maris Pertinens ad dictum Castrum valet ê‘ annÌ„ 4 S So that by the general Patent of the Admiral will not pass the Wreck of this Isle without special words granted in the Patent Note If the Wreck happened or was occasioned by reason of any fault or negligence in the Master or Marriners the Master must make good the loss but if the same was occasioned by the act of God to avoid an Enemy or Pyrat and the like there he shall be excused CHAP. VI. Of Averidges and Contributions I. Of Goods and Merchandize when subject to be cast over-board II. Of the Account rendred of such ejected Goods and by whom III. Of the Antient Lawes of England as in reference to such Ejectments IV. What Goods must come into the Averidge and what are exempt V. The Master discharged by such acts by the Common Law VI. The Ships Geare or Apparel whether within the Averidge VII The residue of the Goods where tacitly obliged to answer the Averidge VIII Of Goods remaining a shipboard spoyl'd by reason of the ejecting of others where subject to the Averidge IX Where Ship and Lading are both made liable to the Averidge X. Of misfortunes not subject to an Averidge XI Where the remainder of the Goods are exempted from the Averidge and the damage of the ejected Goods falls on the Master XII Damage to the Ship where the Lading contributes and the Standard rate in Contributions XIII The Master becomes a Captive for the redemption of Ship and Lading where lyable to the Averidge and where discharged XIV What Goods are subject to the Averidge XV. Contribution for Pylotage and where the remaining Goods not subject to Averidge XVI Rules general for settling the Averidge I. SHips being Freighted and at Sea are often subject to storms in which by the Ancient Lawes and Customes of the Sea in Extream necessity the Goods Wares Guns or whatsoever else shall be thought fit may in such Extremity be flung over-board but then the Master ought to consult with his Marriners who if they consent not and yet the storm and danger continues the Master may command notwithstanding the casting overboard what he shall judge most fitting for the common safety of the rest If there be a super Cargoe a request ought to be made to him to begin first but if he refuses the Marriners may proceed II. If the Ship so fortunes as to out-weather the Storm and in safety arrives at her Port of discharge the Master and the most of his Crew must swear that the Goods were cast over for no other cause but purely for the Safety of the Ship and Lading The custome of clearing of that Point varies according to the several Countries or places they arrive at III. King William the Conquerour and Henry the First made and ratified this Law concerning Goods cast over-board by Marriners in a Storm in imitation of the Ancient Rhodian Law de jact ' Si ego jecero res tuas de Navi ob metum mortis de hoc non potes me implacitare nam licet alteri damnum inferre ob metum mortis quando periculum evadere non potest Et si de hoc me mesces qd ob metum mortis nil fecisse de comespriorai Et ea quae in navi restant dividantur in communi secundum catalla et si quis fecerit Catalla extra navim quando necessitas non exigerit ea restituat IV. The Ship arriving in safety the remainder must come into the Averidge not onely those Goods which pay Freight but all those that have obtained safety and preservation by such ejection even Money Jewels and Clothes and such like are not exempted But those things which are born upon a mans body Victuals and the like put a Shipboard to be spent are totally excluded from the Contribution The Master ought to be careful that onely those things of the least value and greatest weight be flung over-board V. As this Law does take care that this common Calamity should be born by all the parties interessed by a general Contribution so the Common Law takes notice of the misfortune and makes provision to Indempnifie the Master and therefore if the party Owner of such ejected Goods shall bring an Action against the Master or Owners of the Vessel the Defendant may plead the special matter and the same shall barr the Plaintiff VI. But if the Ships Gear or Apparel be lost by Storm the same is not within the Averidge but is accounted like unto a Workman breaking or spoyling his Tools So for Goods secretly brought into the Ship against the Master or Pursers knowledg no Contribution is to be made except in the avoiding of a danger as the flinging the Most overboard or the slipping the Tow-Anchor or Boat This Order is observed generally in the rating
any damage happens they are to make full satisfaction so it is if they lay out an Anchor and neglect the placing of a Buoy to the Anchor and damage happen thereby they are not onely subject to be punished in the Admiralty but likewise to render satisfaction to the party damnified If two Ships be in the River and the one falls foul on the other both being laden by the Law Maritime the Contribution is to be in Common and to be equally divided and apprized half by half but then the Marriners must swear there was no fault in them for otherwise one that hath an old rotten Vessel which he can no wayes dispose of may so order the matter as to lay her in the way of a good Ship under sayl so that the same may be answered in damage but when the Contribution is made equal then the contrivance will be avoided CHAP. X. Of Bills of Exchange I. Of the Antiquity of Exchange by the Hebrew Law II. Of the Antiquity of Exchange by the Romans III. Of Exchanges by other Nations in imitation of those people IV. Of the several sorts of Exchanges and of Cambio commune V. Of Cambio real or Exchanges value for value VI. Of Cambio sicco or dry Exchanges VII Of Cambio fictitio or seigned Exchange VIII Of the Exchanges used this day and on what IX How Exchanges are made and upon Moneys in London X. Moneys paid generally how repaid by Exchange XI Of Bills of Exchange payable at single usance XII Bills of Exchange at double or treble usance and of the customary usances to certain places from London and Amsterdam to other places XIII Of the nature of Bills of Exchange and how esteemed of by the Lawes of England XIV Bills drawn more then one no prejudice to the parties and of the true measure of judging on Bills by Custome XV. What amounts to an acceptance generally and on refusal where to be protested XVI All the drawers are made lyable and whether the party to whom the Money is made payable is bound to procure an acceptance XVII Protest what is meant by the same and where the same is necessary and where not XVIII Bill drawn on two persons where the same is necessary and where not XIX One Factor serves a Company where a Bill accepted of his by one of the Company obliges the rest and where not XX. What words amount to an acceptance and what not XXI Where a Bill may be accepted for part and what must be done with the Bill thereupon XXII When a Countermand may legally be made and when not XXIII How the several parties interessed in a Bill of Exchange are obliged and fettered to each other XXIV How a Collateral security may be annexed to a Bill when the time is elapsed for non-payment XXV Where the Protest is onely necessary to be kept and where that and the Bill must both be remitted XXVI Bill lost what is necessary for the parties interessed in such case to act XXVII Of blanck Endorsements the validity of the same XXVIII A Bill once accepted whether the same may be revoked and whether it may be accepted to be paid at a longer time then is mentioned and what Protests are then necessary to be made XXIX Of Bills accepted for the honour of the drawer where the same shall oblige XXX The time customary allowed for payment after failer of payment at the day XXXI Of the validity of the speedy protest as in relation to recover the money to be paid on the drawer XXXII Bill accepted and before the day of payment the Acceptor is a sayling what 's necessary to be done as in reference to obtaining better security XXXIII Bills accepted for the honour of the drawer where turned into an act and remitted by him that gives honour to the Bill XXXIV The Acceptor ready to pay but the party to whom made payable is dead what is necessary XXXV Causes general for a Protest and where satisfaction to the deliverer discharges all parties XXXVI Of Exchange by way of Credit XXXVII One payes a Bill before it be due and the party to whom the same was paid fails where he shall be answerable to the drawer notwithstanding XXXVIII Of Bills assignable over according to the Customes of Merchants what operation in England I. THe Exchange for Moneys is of great Antiquity as well by observation of the Hebrew Customes as those of the Romans Upon the first of the Month Adar Proclamation was made thoroughout all Israel That the People should provide their half Shecklâ—… which were yearly paid towards the Service of the Temple according to the Commandement of God on the 25th of Adar then they brought Tables into the Temple that is into the outward Court where the people stood on these Tables lay the lesser Coyns which were to furnish those who wanted half Sheckles for their Offerings or that wanted lesser pieces of money in their payment for Oxen Sheep Doves and the like which stood there in a readiness in the same Court to be sold for Sacrifices but this supply and furnishing the people from those Tables was not without an Exchange for other money or other things in lieu of money and that upon advantage Hence all those that sate at the Tables were called chief Bankers or Masters of the Exchange II. By the Romans it is supposed to be in use upwards of 2000 years Moneys being then elected out of the best of Metals to avoid the tedious carriage of Merchandize from one Countrey to another So other Nations imitating the Jewes and Romans erected Mints and coyned Moneys upon which the Exchange by Bills was devised not onely to avoid the danger and adventure but also its troublesome and tedious carriage III. Thus Kingdoms and Countreys having by their soveraign authorities coyned Moneys caused them to appoint a certain Exchange for permutation of the various Coyns of several Countreys without any transportation of the Coyn but giving par pro pari or value for value with a certain allowance to be made those Exchangers for accommodating the Merchants IV. As Commerce became various so Exchange numerous but generally reduced to four Cambio Commune Cambio real Cambio sicco and Cambio fictitio Cambio Commune in England was those that were Constituted by the several Kings where having received Moneys in England would remit by Exchange the like sum to be paid in another Kingdome Edward the Third to ascertain the Exchange caused Tables to be set up in most of the gâ—…eral Marts or Ports of England declaring the values of all or most of the Forraign Coyns of those Countries where his Subjects held correspondence or Commerce and what allowances were to be made for having Moneys to be remitted to such Countryes or Kingdoms V. Cambio real was when Moneys were paid to the Exchanger and Bills were drawn without naming the Species but according to the value of the several Coyns which two Offices afterwards were
yet it does not wholly remove the disease or non-ability as to the points of descent or hereditary transmission and resembles a Person in case of an Attainder and therefore if he purchases Lands and dyes without issue the Lord by Escheat shall have the Lands And therefore in lineal descents if there be a Grand-father natural born Subject Father an Alien Son natural Subject the Father is made Denizon he shall not inherit the Grand-father and if the Father dyes in the life of the Grand-father the Grand-child though born after the Denization shall not inherit the Grand-father for the Denization does not remove neither the personal nor the consequential impediment or incapacity of the Father So likewise in Collateral descents As for instance the Father a Natural born Subject has issue two Sons Aliens who are both made Denizens and one dyes the other shall not inherit him XII The like Law in Dower a Man seized of Lands in Fee and takes an Alien to Wife and then dyes the Wife shall not be endowed But if the King takes an Alien to Wife and dyes his Widdow Queen shall be endowed by the Law of the Crown Edmund Brother of King Edward the I. married the Queen of Navarre and dyed and it was resolved by all the Judges that she should be endowed of the third part of all the Lands whereof her Husband was seized in Fee A Jew born in England takes to Wife a Jew born also in England the Husband is converted to the Christian Faith purchaseth Lands and enfeoffeth another and dyeth the Wife brought a Writ of Dower and was barred of her Dower Quia vero contra justitiam est quod ipsa dotem petat vel habeat de temento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo convert If an Alien be a Disseisor and obtains Letters of Denization and then the Disseisor release unto him the King shall not have the Land for the release hath altered the Estate and it is as it were a new purchase otherwise it is as if the Alien had been the feo ffee of the Deseissee And though Aliens are enabled by Charter of Denization to a transmission Hereditary to their posterity of Lands yet a Denizon is not capable of Honour nor a transmission of the same without Naturalization by Parliament for by the Charter of Denization he is made quasi seu tanquam ligens but to be a Member of Parliament he must be ligens revera non quasi for by his becoming a Noble-man he claims the place of Judicature in Parliament the which he cannot till naturalized by Act of Parliament and then he may claim as eligible to the same or any other CHAP. IV. Of Aliens and Crials per meditatem where allowed and where not I. Of the manner of Aliens obtaining Trials per medietatem at the Common-Law and of the Antiquity of the same II. Of the making the same a Law universal within this Realm as to some Persons afterwards general as to all III. Of the Writ and some Observations on the summons of such an Inquest IV. Of the opportunity lost or gained by praying this immunity V. Of the awarding of Tales upon request on such Enquiries VI. Where this immunity does not extend in Aliens and where it does in matters Civil and Criminal VII Of the validity of a witness Alien and of an Infidel VIII The tittle of a Renegadoe IX Of the benefit of the Kings Pardon whether it extends to an Alien whose abode is here but happens to be absent at the time of the promulging I. TRiatio Bilinguis or per medietatem linguae by the Common-Law was wont to be obtained by Grant of the King made to any Company of Strangers as to the Society of Lumbards or Almaignes or to any other Corporation or Company when any of them were impleaded the moyety of the Enquest should be of their own Tongue this Trial per medietatem in England is of great Antiquity for in some cases Trials per medietatem was before the Conquest Viri duodeni Jure Consulti sex Walliae totidem Anglis Wallis jus dicanto and as the Commentator observes it was called duodecem Virale Judicium II. This immunity afterwards being found commodious to us Islanders became universal for by the Statute of 27. E. 3. cap. 8. It was enacted that in Pleas before the Major of the Staple if both Parties were Strangers the Trial should be by Strangers but if one Party was a Stranger and the other a Denizon then the Trial should be per medietatem Linguae But this Statute extended but to a narrow compass viz. Only where both Parties were Merchants or Ministers of the Staple and Pleas before the Major of the Staple But afterwards in the 28th Year of the same Kings Reign it was enacted That all manner of Enquests which was to be taken or made amongst Aliens and Denizons be they Merchants or others as well before the Maior of the Staple as before any other Justices or Ministers Although the King be party the one half of the Enquest or proof shall be Denizens the other half Aliens if so many Aliens and Forreigners be in the Town or Place where such Enquest or proof is to be taken that be not Parties nor with the Parties in Contract in Plea or other quarrel whereof such Enquest or proof ought to be taken and if there be not so many Aliens then shall there be put in such Enquests or proofs as many Aliens as shall be found in the same Town or Places which be not thereto Parties as aforesaid is said and the remnant of Denizens which be good men and not suspicious to the one Party or other By which Statute the same Custom or immunity was made a Law universal although it be in the Case of the King for the Alien shall have his Trial per medietatem It matters not whether the moyety of Aliens be of the same Country as the Alien party to the action is for he may be a Dutch-man and they Spaniards French Walloons c. because the Statute speaks generally of Aliens III. The Form of the Venire facias in this case is De Nicenet c. quorum una medietas fit de Indigenis altera medietas fit de aliegenis natis c. And the Sheriff ought to return twelve Aliens and twelve Denizâ—…ns one by the other with Addition which of them are Aliens and so they are to be sworn but if this Order be not observed it is holpen as a misreturn It has been conceived of some that it is not proper to call it a Trial per medietatem Linguae because any Alien of any Tongue may serve but that surely is no Objection for People are distinguished by their Language and medietas Linguae is as much as to say half English and half of another
tongue or Nation whatsoever nor matters it of what sufficiency the Jurors are for the form of the venire facias shall not be altered but the clause of quorum quolibet habeat 4. c. shall be in If both parties are Aliens then the Inquest shall be all English for though the English may be supposed to favour themselves more then Strangers yet when both Parties are Aliens it will be presumed they will favour both alike without any difference IV. If an Alien is party who slips his opportunity and suffers a Trial by all English the same is not a Verdict Erroneous for if he will be so negligent as to slip that advantage which the Law gives him it is his fault for the Alien if he will have the benefit of that Law he must then pray a venire facias per meditatem Linguae at the time of the awarding the venire facias But if a neglect of that opportunity happens yet if he prays it after the awarding a general venire facias the same may be retreeved so as it be before the venire be returned and filed for then he may have a venire facias de novo or otherwise he cannot nor can he afterwards challenge the Array for this cause if it falls out the Juries are all Denizens though Sandford seems to be of a contrary opinion for the Alien must pray it at his peril V. If there be a general venire facias the Defendant cannot pray a decem Tales c. per medietatem Linguae upon this because the Tales ought to pursue the venire facias But if the venire facias be per medietatem Linguae the Tales ought to be per medietatem Linguae as if five Aliens and five Denizens appear on the principal Jury the Plaintif may have a Tales per medietatem but if the Tales be general de Circumstantibus it hath been held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded If an Alien that lives here under the protection of the King of England and Amity being between both Kings commits Treason he shall by force of the Act of 1. and 2. Ph. and Mary be tryed according to the due course of the Common Law and shall not in that case be tryed per medietatem Linguae But in case of Petit Treason Murder Fellony c. if he prays his Trial per medietatem Linguae the Court ought to grant it Yet if an Information be exhibited against an Alien the Trial is not per medietatem but according to the Common-Law If an Alien in League brings an action if there be cause the Defendant may plead in abatement but if it be an Alien Enemy he may conclude in the action In an action for words the Defendant pleaded not guilty and said he was an Alien born and prayed Trial per medietatem Linguae which was granted and at the nisi prius in London but six English-men and five Aliens appeared and the Plaintif prayed a Tales de Circumstantibus per medietatem Linguae and it was granted so there wanted one Alien and the Record was Ideo Alius Aliegena de Circumstantibus per vic' London ad requisitionem infra nominati Julii Caesaris per mandato Justiciarum de novo apposito cujus nomen panelo praedict ' affilatur secundum formam Statuti in hujusmodi casu nuper editi provise qui quidem Jurato sic de novo appositus viz. Christianus Dethick Alienigena exactus venit ac in Juratam illam simul cum aliis Juratoribus praedicta prius impanellatis Juratis Juratus fuit c. It was found for the Plaintiff and afterwards moved in Arrest of Judgment That no Tales was to be granted de Circumstantibus when the Trial is per medietatem Linguae by the Justices of Nisi prius by the Act of 35 H. 8. because in the Act it is spoken of Free-hold of Jurors and an Alien is not properly said of any Countrey or to have any Free-hold but it was adjudged because the Statute was made for speedy execution that it should be expounded favorably according to the intent and meaning of the Makers of the Act and though in this case the Tales was prayed by the Plaintiff where it ought to have been ad requisitionem defendentis yet that should be taken to be but a misprision and would be amended VI. If the Plaintiff or Defendant be Executor or Administrator though he be an Alien yet the Trial shall be by English because he sueth in Auter droit but if it be averred that the Testator or Intestate was an Alien then it shall be per medietatem Linguae Shely a French man who joyned with Stafford in the Rebellion in the taking of Scarborough Castle in the County of York he being taken was arraigned in the Kings Bench upon an Indictment of Treason and the Indictment was contra legiantiam suam debitam and the Indictment was rul'd to be good although he was no Subject because it was in the time of Peace between the Queen and the French King But if it had been in the time of War then the Party should not have been indicted but ransomed It was likewise rul'd there that the Trial was good although the Venire facias awarded in York was general and not de medietatem Linguae for such Trial per medietatem Linguae does not extend to Treasons 4. Ma. Dyer 145. the Indictment ought to omit the words Naturalem Dominam suam and begin that he intended Treason contra Dominam Reginam c. Hill 36. Eliz. in B. R. Stephano Ferraro d'Games case in Dr. Lopez Treason If an Alien Enemy come into this Realm and be taken in War he cannot be indicted of Treason for the Indictment cannot conclude contra legianeiae suae debitum for he never was in the protection of the King and therefore he shall suffer death by Marshal Law and so it was rul'd in 13 H 7. in Perkin Warbecks case who being an Alien born in Flanders feigned himself to be one of the Sons of King Edward the 4th and invaded the Realm with intent to take upon him the Dignity who had his Judgment and Trial by Martial Law and not by the Common-Law of England VII The Kingdom of Ireland was a Dominion separated and divided from England at the first and came to the Crown of England by Conquest in the time of Henry the Second and the meer Irish were as Aliens Enemies to to the Crown of England and were disabled to bring any action and were out of the protection of the Laws of this Realm and five Scepts of the Irish Nation were only enabled to the Laws of England viz. Oneil de Ultonia O Molloghlin de Media O Connoghor de Connacia O Brian de Tholmonio and Ma Murogh de Lagenia as appears by the Records
by purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by an Act of its own to transfer by hereditary descent the Alien dying his issue a Denizon born the Land will not descend or to take by an Act in Law for the Law Quae nihil facit frustra will not give him an inheritance or free-hold by an Act in Law for he cannot keep it Therefore the Law will not give him 1. By discent 2. By courtesey 3. By Dower 4. By Guardianship And in respect of that incapacity he ressembles a Person Attaint but with this difference The Law looks upon a Person attaint as one that it takes notice of and therefore the eldest Son attainted over-living the Father though he shall not take by descent in respect of his disability yet he shall hinder the descent to the younger But if the eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the yonger Brother As for instance if there be three Brothers the eldest an Alien the other two naturalized and the middle Brother purchase and dyes without issue the younger Brother shall have the Lands III. Concerning the Rules of descents we are not to govern our selves therein by the general notions of love or proximity of nature but by the municipal Ltws of the Countrey wherein the question ariseth for the various Laws of divers Countreys have variously disposed the manner of descents even in the same line and degree of proximity For instance the Father certainly is as near of kin to the Son as the Son is to the Father and is nearer in proximity than a Brother and therefore shall he preferred as next of kin in administration to the Sons Estate According to the Jews for want of issue of the Son the Father succeeds excluding the Brothers and that hath been the use and construction of the Jewish Doctors upon numb 27. 9. but the Mother was wholly excluded 2. According to the provision of the Greeks for the succession or exclusion of the Father is left doubtful 3. By the Roman or Civil Law according to the estimation of the twelve Tables the Father succeeded in the purchase of the Son for want of issue of the Son under the title proximit agnato and so was the use but my Lord Cook supposes the contrary But taking the whole Institution of Justinian the Son dying without issue his Brothers Sisters Father or Mother do succeed him as well to Land as goods in a kind of Copercenary 4. According to the Laws of Normandy which in some things have a cognition with our Law his Brothers are preferred before the Father if the Son dye issueless but his Father before his Uncle 5. According to the Laws of England the Son dying sans issue or Brothers or Sisters the Father cannot succeed but it descends to the Uncle IV. There be two kinds of descents according to the Common Laws of this Realm 1. Lineal from the Father or Grand-father to Son or Grand-son 2. Collateral or transversed as from Brother to Sister Uncle to Nephew and e converso And both these again of two sorts 1. Immediate as in lineals from Father to Son 2. Mediate as in lineals from Grand-father to Grand-child where the Father dying in the life time of the Grand-father is the medium differens of the descent Collateral as in lineal from Uncle to Nephew or e converso And this meditae descent or meditate Ancestor though to many purposes it be immediate for the Father dying in the life of the Grand-father the Son succeeds in point of descent in the Lands immediately to the Grand-father and in a writ of Entry shall be supposed to be in by the Grand-father and not in the post cui This is called a mediate descent because the Father is the medium through whom the Son derives his title to the Grand-father In immediate descents there can be no impediment but what arises in the parties themselves For instance the Father seized of Lands the impediment that hinders the descent must be in the Father or Son as if either of them attaint or an Alien In mediate descents a disability of being an Alien or Attaint in him that is called the medius antecessor will disable a Person to take by descent though he himself have no such disability In lineal descents if the Father be Attaint or an Alien and hath issue a Denizon born and dye in the life time of the Grand-father the Grand-father dyes seized the Son shall not take but the Land shall escheat In Collateral descents A. and B. brothers A. is an Alien or attaint has issue C. a Denizon born B. purchases Lands and dyes without issue C. shall not inherit because A. which was the medius antecessor or medium differens is uncapable V. But in any descents the impediment in an Ancestor that is not medius antecessor from whom and to whom will not impede the discent As for instance the Grand-father and Grand-mother both Aliens or attaint of Treason have issue the Father a Denizon who hath issue the Son a natural born subject the Father purchases Lands and dyes the Son shall be Heir to the Father notwithstanding the disability of the Grand-father and yet all the blood which the Father hath is derived from his disabled Parents for they are not medii antecessores between the Father and the Son but paramont The Law does not hinder but that an Alien is of the same degree and relation of consanguinity as natural born Subjects or Denizons born the Son Father and Brother though Aliens the Son Father and Brother our Law takes notice of as well as natural born Subjects and so it was adjudged for he shall be preferred in Administration though an Alien as next of Kin. But in cases of Inheritance the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the younger Brother As for instance A an Alien B. and C. naturalized by Act of Parliament brothers B. purchases Lands and dyes sine prole C. shall inherit and not A. A. an Alien B. and C. his Brothers both naturalized by Act of Parliament B. purchases Lands and dâ—…es wâ—…th out issue the same shall not come to A nor to his issue though a Denizon but shall come to C. and his issue the Law taking no notice of A. as to impede the succession of C. or his issue though it work a consequential disability to bar the issue of A. parallel to what the Law calls corruption of blood which is a consequent of Attainder VI. Again in lineal descents if there be a Grandfather natural born Subject Father an Alien Son natural born subject the Father is made Denizon he shall not inherit the
not Aliens Scotland is a Kingdom by union and therefore those that were born in Scotland under the allegiance of the King as of his Kingdom of Scotland before the Crown came united were Aliens born and such plea against such Persons was a good plea but those that were born since the Crown of England descended to King James are not Aliens for they were born sub side legiantia Domini Regis so those that are born at this day in Uirginia New England Barbadoes Jamaiâ—…a or any other of his Majesties Plantations and Dominions are natural born Subjects and not Aliens so likewise those that are born upon the King of England's Seas are not Aliens X. But if an Alien be made an Abbot Prior Bishop or Dean the plea of an Alien we shall not disable him to to bring any real or mixt action concerning the possessions that he hold in his politique capacity because the same is brought in auter droit The like Law is for an Executor or Administrator because the recovery is to anothers use If an action is brought against an Alien and there is a Verdict and Judgment against him yet he may bring a writ of Error and be plaintif there and that such plea is not good in that case Though an Alien may purchase and take that which he cannot keep nor retain yet the Law hath provided a mean of enquiry before he can be devested of the same for until Office be found the free-hold is in him And this Office which is to gain to the King a Fee or Free-hold must be under the Great Seal of England for a Commission under the Exchequer Seal is not sufficient to entitle the King to the Lands of an Alien born for the Commission is that which gives a title to the King for before that the King hath no title but in cases of Treason there upon Attainder the Lands are in the King without Office and in that case to inform the Court a Commission may go out under the Echequer Seal XI If an Alien and a Subject born purchase Lands to them and to their Heirs they are joint tenants and shall join in Assize and the Survivor shall hold place till Office found By the finding of this Office the party is out of possession if the same be of Houses or Lands or such things as do lye in livery but of Rents Common advowsons and other Inheritances incorporeal which lye in grant the Alien is not out of possession be they appendant or in gross therefore if an Information or an Action be brought for the same the party may traverse the Office in that Court where the Action or Information is brought for the King And if the King obtains not the possession within the year after the Office found he cannot seize without a scire facias It is not for the Honour of the King an Alien purchasing of a Copyhold to seize the same for that the same is a base tenure and so it was adjudged where a Copy-hold was surrendred to J. S. in trust that one Holland an Alien should take the profits thereof to his own use and benefit upon an Inquisition taken it was adjudged the same was void and should be quashed because the King cannot be entitled to the Copyhold Lands of an Alien nor to the use of Copyhold Lands as the principal case was An Alien Infant under the age of 21 years cannot be a Merchant Trader within this Realm nor can he enter any goods in his own name at the Custom-house If an Englishman shall go beyond the Seas and shall there become a sworn Subject to any Forraign Prince or State he shall be look'd upon in the nature of an Alien and shall pay such Impositions as Aliens if he comes and lives in England again he shall be restored to his liberties An Alien is robbed and then he makes his Executor and dyes and afterwards the goods are waift the Lord of the Franchise shall not have them but the Executors Vide Stat. 13. E. 4. All personal actions he may sue as on a Bond so likewise for words for the Common Law according to the Laws of Nations protects Trade and Traffique and not to have the benefit of the Law in such cases is to deny Trade CHAP. III. Of Naturalization and Denization I. Whether the Kings of England can naturalize without Act of Parliament II. What operation Naturalization hath in reference to remove the disability arising from themselves III. What operation naturalization hath as in reference to remove deffects arising from a lineal or collateral Ancestor IV. A Kingdom conquered and united to the Crown of England whether by granting them a power to make Laws can implicitely create in them such a Soveraignty as to impose on the Realm of England V. Of Persons naturalized by a Kingdom dependant whether capable of imposing on one that is absolute VI. Of Kingdoms obtained by conquest how the Empire of the same is acquired and how the Conqueror succeeds VII Ireland what condition it was accounted before the Conquest as in reference to the Natives of the same and whether by making it a Kingdom they can create a Forraigner as a natural born subject of England VIII Of Aliens as in reference to the transmission of their Goods Chattels by the Laws of France IX Of the Priviledges the Kings of England of old claimed in the Estates of Jews dying comorant here and how the same at this day stands X. Of Persons born in places annexed or claimed by the Crown of England how esteemed by the Laws of the same XI Of Denization and what operation it hath according to the Laws of England XII Where an Alien is capable of Dower by the Laws of England and where not and of the total incapacity of a Jew XIII Whether a Denizon is capable of the creation and retention of Honour by the Laws of England I. THe Father and the Mother are the fountain of the blood natural and as it is that that makes their Issue Sons or Daughters so it is that that makes them Brothers and Sisters but it is the civil qualifications of the blood that makes them inheritable one to the other and capable of enjoying the immunities and priviledges of the Kingdom but that is from another fountain viz. The Law of the Land which finding them legitimate doth transplant them into the Civil rights of the Land by an Act called Naturalization which does superinduce and cloath that natural consanguinity with a Civil hereditary quality whereby they are enabled not only to inherit each other but also to enjoy all the immunities and priviledges that meer natural born Subjects may or can challenge II. According to the Laws of Normandy the Prince might naturalize but such naturalization could not divest the descent already vested But according to our Law by no way but by Act of Parliament and that cures the defect as